Charles Dickens’ A Christmas Carol begins:
Marley was dead: to begin with. There is no doubt whatever about that.
Just as it was clear that Marley was dead, there is no doubt that Queensland’s harsh “anti-bikie” legislation, which in fact can be applied to any person in Queensland at any time, is an assault on our civil liberties.
The Queensland Council for Civil Liberties (QCCL) takes the view that any interference with a recognised civil liberty or human right should only occur if that interference can be rationally demonstrated to be necessary, reasonable, justified and proportionate. The Queensland government has demonstrated neither.
The 122 pages-long annual report of the Crime and Misconduct Commission of Queensland released in September mentions bikies – referred to as “outlaw motorcycle gangs” – on only three occasions. It makes no mention of the need for the astonishing measures which have been hurriedly passed by the Queensland parliament with little consultation. Queensland police have also recently been given many new and extraordinary powers in relation to unexplained wealth, which are said to be the “toughest in Australia”.
The current legislation was prompted by a brawl on the Gold Coast, which resulted in some 18 persons being charged. It was reminiscent of the horrible 2009 incident in the Sydney airport, which prompted previous versions of the so-called anti-bikie laws. The fact that so many individuals were charged following these incidents would indicate not that the law had failed, but that it was working effectively. After all, we have a law against murder. The fact that murders still occur does not mean that the law is inadequate.
The real problem at Surfers Paradise was not a lack of powers, but a lack of police resources. The Queensland Police Union has been complaining about the lack of police on the Gold Coast for some time. That this was the problem is confirmed by the fact that within hours of the incident, premier Campbell Newman was able to find $20m to improve police resources.
The fundamental principle underlying our legal system for the last 200 years has been that people should be imprisoned for their conduct or behaviour, not for what they might do, or because of the people with whom they associate. And yet this legislation makes it illegal to be a member of an organisation, or to be associated with members of certain organisations.
In that regard, it represents what we have long feared: the transfer of the principles underlying anti-terrorism legislation into the general criminal law. At least the Queensland Criminal Organisation Act 2009 provided a mechanism by which whether or not an organisation is a criminal organisation is decided by a judge on the basis of evidence. Under the new laws, it is done by the fiat of the parliament or the attorney-general. Our liberty should not depend upon the government being made up of saints, or even of reasonable persons.
As it presently stands, any organisation could be listed under newly passed criminal organisation disruption act and be made subject to its provisions – and innocent people have already been caught up in its pernicious effect. We already have, for example, a member of the public who was questioned by the police because he was wearing a Sons of Anarchy shirt.
This doesn’t stop here. On 1 November, it was reported that the Queensland police have asked recreational motorcycle riders to register with them prior to going out on the roads to avoid being pulled over. The police are apparently concerned that members of the outlawed motorcycle organisations are divesting themselves of their colours and taking shelter in legitimate motorcycle organisations. That was of course going to occur, resulting in the police forced to chase alleged criminals in entirely legitimate organisations, resulting in innocent people going about their lawful business being stopped and questioned in public, or forced to register so they can go for a Sunday drive.
We can point to history to support our concerns. In the 1920s, the New South Wales government introduced consorting legislation following a moral panic induced by outrageous claims in the media about Sydney’s “razor gangs”. It was predicted by such notable civil libertarians as Jack Lang that the legislation would be abused. And so it was. Consorting legislation became a by word for the abuse of police powers and police corruption, with no evidence that it made any difference to public safety. It simply existed for the purpose of satisfying the demands of particular newspapers. Likewise, today’s legislation exists because state governments have sought to stay in office by beating the law and order drum.
It is said by some that premier Newman is displaying his skill as a quality politician who thinks outside the box. These measures are quite the opposite; they are a continuation of the failed policy of the last 40 years. The premier says that they are necessary to destroy the bikies’ businesses, which are largely based on the manufacture and sale of illegal drugs. A more effective policy for destroying them would be in fact to end the prohibition on drugs. The evidence from Portugal, where drugs have been decriminalised since 2001, is that drug use will not increase as a result of decriminalisation. In stark contrast, Newman probably looks to the US for inspiration – where the supreme court has had to order the Californian government to release prisoners due to overcrowding. There is nothing more certain than that these sorts of law and order policies will result in more people in our prisons, and increase costs to the taxpayers.
In the meantime, let’s keep this in mind: freedom is indivisible – this is the point of the somewhat overused Niemöller quote. If we do not object now to the principle that people can be jailed because of who they know or what organisations they join, inevitably this legislation will be extended to a cause or person nearer and dearer to you than bikies.
The astonishing measures passed by the Queensland government will do little to protect public safety, but innocent people have already been targeted as a result.